FTC Chair Khan Continues to Miss the Point
At the recent House Judiciary committee oversight hearing, Federal Trade Commission (FTC) Chair Lina Kahn was pressed over her ethical lapses in the Meta-Within merger. At this point, the facts are clear. The ethics officer at the FTC recommended Chair Khan recuse herself. Chair Khan refused to do so.
When you are in a privileged position of senior government service, you are expected to own the decisions you make. Yet, Chair Khan has done everything to avoid explaining why she chose not to follow the recommendation to recuse herself. To make matters worse, in concert with her fellow Democrat Commissioners, there has been an active effort to prevent the decision from becoming public. These actions have led to the very public resignation of Christine Wilson, the lone Republican Commissioner, in protest, as well as two oversight hearings before Congress where Chair Khan has continued to refuse to accept responsibility for her decision.
Longstanding Deeply Held Views
Chair Khan is a leader in the Neo-Brandeis movement whose agenda is deeply biased, loudly targeting leading companies across multiple industries. Khan routinely promotes these deeply held views and has neither been shy nor careful about expressing them over the years. She made her name attacking Amazon with her graduate thesis, she worked for a lobbying group where she was paid to attack Meta, and she played an integral part in the writing of an incredibility one-sided Congressional report attacking technology companies. Since becoming chair, she has only continued to make her views on these matters well known.
Why does it matter?
Public officials are expected to maintain high ethical standards. Chair Khan was confirmed by the United States Senate with the full awareness that she holds deeply held views that make her prone to bias. This is why questions around recusal were paramount during her confirmation process. In fact, under oath, she committed to Senator Mike Lee (R-UT) that she would consult with and follow the recommendations of the FTC ethics office. She now has violated that pledge that she made under oath. But there is something particularly important to understand about the ethics standard necessary to be a Federal Trade Commissioner.
The FTC can play multiple roles in the same proceeding. It can be the investigator, the prosecutor, the judge, and the jury at various points in time. This consolidation of power, with few internal checks and balances, is why recusal decisions at the FTC are particularly important. It is why no FTC official in the agency’s more than 100-year history is known to have gone against the recommendation of the ethics official.
It is one thing to hold some level of bias as a prosecutor. Khan has a long track record in opposition to Meta and to companies like Meta growing through acquisition. It is less important for her to recuse herself when the FTC decided to investigate the transaction or when she voted to block the transaction and go to court to seek a preliminary injunction to prevent the merger from moving ahead.
However, the FTC lost its case in federal court, a critical check and balance over the agency. At that point, the FTC had a choice, either stand down or press ahead and start its own internal administrative trial. Internal trials following a loss in court are exceedingly rare -- when it has happened it has never ended well for the agency. In the Meta-Within transaction, the FTC made plans to push ahead and hold its own internal trial.
It was then that Chair Khan received the recommendation to recuse herself. The recommendation was that Chair Khan’s well-known views against Meta would make it too difficult for her to be viewed as impartial, as she would now be asked to move from being in the role of prosecutor to taking on a role of judge and jury. We now know chair Khan ignored that advice. As this became public, the FTC reversed course and canceled its plans for its internal trial.
Chair Khan has deeply held views that present real questions of bias. Being faithful to those views and being a vigorous prosecutor is less the problem. The bigger problem is the inability to recognize that one cannot switch sides and preside over the internal trial. Khan should have recused herself. This failure is compounded by her unwillingness to “own” the decision she made.
Sean Heather is Senior Vice President of International Regulatory Affairs and Antitrust at the U.S. Chamber of Commerce.
